McShane-Powers v. Folkestad

CYNTHIA A. MCSHANE-POWERS, Plaintiff/Appellant, v. DR. BRADLEY DR. FOLKESTAD, M.D.; and ARROWHEAD HOSPITAL, Defendants/Appellees.

No. 1 CA-CV 10-0638

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT A

Dated: February 16, 2012

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c);

Ariz. R. Crim. P. 31.34

MEMORANDUM DECISION

Not for Publication - (Rule 28, Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County

Cause No. CV2009-031692

The Honorable Edward O. Burke, Judge

REVERSED AND REMANDED WITH INSTRUCTIONS

Cynthia A. McShane-Powers Plaintiff/Appellant in Propria Persona Jones Skelton & Hochuli PLC

Phoenix

By Eileen Dennis GilBride Attorneys for Defendant/Appellee Dr. Folkestad

Phoenix

TIMMER, Judge

¶1 Cynthia A. McShane-Powers appeals the superior court's order dismissing her medical malpractice complaint against Dr. Bradley Folkestad because she failed to provide asufficient preliminary expert opinion affidavit as ordered by the court and required by Arizona Revised Statutes ("A.R.S.") section 12-2603 (Supp. 2010). She argues the court erred because no expert affidavit was required by § 12-2603 and, in any event, she supplied a compliant affidavit. For the reasons that follow, we agree with the court that McShane-Powers was required to serve a preliminary affidavit, and the affidavit she provided does not comply with the statute. Nevertheless, because the trial court failed to give McShane-Powers reasonable time to cure the deficiencies in the affidavit before dismissing the complaint as required by A.R.S. § 12-2603(F), we reverse and remand with instructions to afford her this opportunity.

BACKGROUND ¹

¶2 In April 1998, Dr. Folkestad, a board-certified physician in obstetrics and gynecology ("OB/GYN"), performed abdominal surgery on Powers for a hysterectomy and prolapsed bladder at Arrowhead Hospital. According to McShane-Powers, a surgical sponge or towel ("surgical material") was left in her body. After the surgery, Powers experienced pain during sexual intercourse. In September 1998, Dr. Folkestad performed anothersurgery, but the pain continued. In May 1999, a second OB/GYN physician, Dr. Gordon Davis, performed a third surgery on Powers, which resolved her pain issues.

¶3 Approximately seven years later, in August 2005, skin lesions appeared on McShane-Powers, and Dr. Davis diagnosed warts, which he removed. Thereafter, she experienced joint pain and migraine headaches. Eventually, in October 2007, her primary care physician, Dr. Vogt, took x-rays of her sinuses, which revealed "some type of gauze/textile." According to McShane-Powers, subsequent x-rays taken of different parts of her body, including her foot, similarly show the presence of gauze/textile. She contends the pieces of gauze/textile were remnants of the surgical material left behind during her first 1998 surgery and had traveled from her abdomen to different parts of her body via "trans mural [sic] migration."

¶4 In October 2009, Powers initiated this lawsuit against Dr. Folkestad and Arrowhead Hospital,² alleging Dr. Folkestad is at fault for leaving the surgical material in her abdomen and indicating her intent to rely on the res ipsa loquitur ("res ipsa") doctrine to prove Dr. Folkestad's negligence. Dr. Folkestad moved to dismiss the complaint without prejudice, arguing Powers failed to include the required certificationregarding the need for a preliminary expert affidavit ("preliminary affidavit" or "affidavit"), as mandated by § 12-2603(A). The superior court denied the motion, ruling McShane-Powers' allegation that Dr. Folkestad violated the standard of care by failing to ensure removal of the surgical material was a matter of common knowledge, and no expert opinion would be needed. Powers then moved for summary judgment and attached x-rays purporting to show the surgical material in her body. The court denied her motion, noting the court did not have the expertise to interpret the x-rays and significant issues of fact remained unresolved.

¶5 Dr. Folkestad subsequently moved for an order pursuant to § 12-2603(D) requiring Powers to serve a preliminary affidavit, arguing common knowledge alone was insufficient to prove his alleged negligence. Dr. Folkestad avowed that the Arrowhead Hospital nursing staff was responsible for ensuring removal of surgical material and, regardless, McShane-Powers' subsequent surgery could have resulted in the surgical material purportedly left in her body. Consequently, Dr. Folkestad argued that because McShane-Powers had not sued all individuals who participated in the various surgeries, she could not rely on the res ipsa doctrine to avoid compliance with § 12-2603(A).

¶6 After full briefing, the court granted the motion. The court reasoned that if the allegations in the complaintcomprised the entirety of the record, it would not require an affidavit. But because the record revealed the existence of surgery by another doctor, and because the significance of provided x-rays, microscopic skin sample reports, and the theory of transmural migration are not matters of common knowledge, the court concluded that a preliminary affidavit is required. The court therefore stayed the action until June 1, 2010, when the court would dismiss it if McShane-Powers failed to file a preliminary affidavit.

¶7 In May 2010, Powers filed a second motion for summary judgment and attached an affidavit from Jeffrey Davidson, a microbiologist. Davidson opined that gauze had been left in McShane-Powers' body during her 1998 surgery, it was the surgeon's responsibility to ensure such material is removed, and the material had migrated through her body and intermingled with her tissues.

¶8 In June, the court denied the motion, stating without elaboration McShane-Powers had failed to comply with § 12-2603. Two months later, upon Dr. Folkestad's request in an objection to a motion to set the case for trial, the court dismissed the complaint without prejudice due to McShane-Powers' failure to submit the required affidavit. This appeal followed. ³ Becausewe are presented with a mixed question of fact and law, we review the superior court's dismissal de novo.⁴ Wilmot v. Wilmot, 203 Ariz. 565, 568-69, ¶ 10, 58 P.3d 509, 510-11 (2002) (noting appellate courts are not bound to superior court's conclusions and findings that combine both fact and law).

DISCUSSION

I. Requirement for preliminary affidavit

¶9 Powers argues the superior court erred by requiring a preliminary affidavit pursuant to § 12-2603 because the basis for the allegations against Dr. Folkestad are demonstrated by the res ipsa doctrine. The res ipsa doctrine is a rule of circumstantial evidence that permits the fact-finder to infer negligence when (1) the injury is the type that ordinarily does not occur in the absence of negligence, (2) the injury is caused by an agency or instrumentality under the exclusive control of the defendant, and (3) the claimant is not in a position to showthe particular circumstances that caused the offending agency or instrumentality to result in injury. Sanchez v. Tucson Orthopaedic Inst., P.C., 220 Ariz. 37, 39, ¶ 8, 202 P.3d 502, 504 (App. 2008); Schneider v. City of Phoenix, 9 Ariz. App. 356, 358, 452 P.2d 521, 523 (1969). Dr. Folkestad contends McShane-Powers is not entitled to invoke res ipsa because the record does not establish he had exclusive control over her surgeries. Additionally, he asserts that because other issues relating to the standard of care and liability are not matters of common knowledge, McShane-Powers was required to submit a preliminary affidavit. To resolve this dispute, we examine the interplay between common law principles applicable to medical malpractice claims, § 12-2603, and the res ipsa doctrine and then apply the principles we glean to the record.

¶10 To prevail in her lawsuit, McShane-Powers is required to prove Dr. Folkestad owed her a duty, he breached that duty, and she sustained damages as a result. Seisinger v. Siebel, 220 Ariz. 85, 94, ¶ 32, 203 P.3d 483, 492 (2009). Dr. Folkestad breached his duty if he failed to exercise the "same care in the performing of his duties as was ordinarily possessed and exercised by other physicians of the same class in the community in which he practiced." Id. at ¶ 33 (citation and internal quotation marks omitted). This level of care is commonly referred to as the "standard of care." Id. at ¶ 32. McShane-Powers is required to establish the standard of care by expert medical opinion, unless it is a matter of common knowledge that her injuries would not have occurred if Dr. Folkestad had exercised due care. Id. at ¶ 33; see also Sanchez v. Old Pueblo Anesthesia, P.C. , 218 Ariz. 317, 321, ¶ 13, 183 P.3d 1285, 1289 (App. 2008) (holding expert testimony is necessary to establish departure from standard of care "except when negligence is so clearly apparent that a layman would recognize it").

¶11 Section 12-2603(A) requires a plaintiff in a medical malpractice action to certify at the time of the complaint whether expert opinion testimony is necessary to prove the standard of care or liability. If the plaintiff certifies the need for such testimony, a preliminary affidavit setting forth this testimony must be provided along with the disclosure statement mandated by Arizona Rule of Civil Procedure 26.1. A.R.S. § 12-2603(B). If the plaintiff certifies that no expert testimony is needed, the defendant health care professional may move the court to order the plaintiff to obtain and serve a preliminary affidavit. A.R.S. § 12-2603(D). If the court grants the motion, the plaintiff must obtain and serve an affidavit by the date and on the terms specified by the court. A.R.S. § 12-2603(E) . The court must dismiss the complaint without prejudice if the plaintiff fails to comply with the court's order. A.R.S. § 12-2603(F).

¶12 Section...